KFLCC Kingdom Law 2nd Ed.

294

COVENANT

COVENANT

Capen v. Barrows, 1 Gray (Mass.) 379; In re Slingsby, 5 Coke, 18b. General or specific. The former relate to land generally and place the covenantee in the position of a specialty creditor only ; the latter relate to particular lands and give the cove nantee a lien thereon. Brown. Executed or executory; the former being such as relate to an act already performed; while the latter are those whose performance is to be future. Shep. Touch. 161. Affirmative or negative; the former being those in which the party binds himself to the existence of a present state of facts as repre sented or to the future performance of some act; while the latter are those in which the cove nantor obliges himself not to do or perform some act. Declaratory or obligatory; the former be ing those which serve to limit or direct uses; while the latter are those which are binding on the party himself. 1 Sid. 27; 1 Keb. 337. Real and personal. A real covenant is one which binds the heirs of the covenantor and passes to assignees or purchasers; a covenant the obligation of which is so connected with the realty that he who has the latter is either en titled to the benefit of it or is liable to perform it; a covenant which has for its object some thing annexed to, or inherent in, or connected with, land or other real property, and runs with the land, so that the grantee of the land is in vested with it and may sue upon it for a breach happening in his time. 4 Kent, Comm. 470; 2 Bl. Comm. 304; Chapman v. Holmes, 10 N. J. Law, 20; Skinner v. Mitchell, 5 Kan. App. 366, 48 Pac. 450; Oil Co. v. Hinton, 159 Ind. 398, 64 N. E. 224; Davis v. Lyman, 6 Conn. 249. In the old books, a covenant real is also de fined to be a covenant by which a man binds himself to pass a thing real, as lands or tene ments. Termes de la Ley; 3 Bl. Comm. 156; Shep. Touch. 161. A personal covenant, on the other hand, is one which, instead of being a charge upon real estate of the covenantor, only binds himself and his personal representatives in respect to assets. 4 Kent, Comm. 470; Car ter v. Denman, 23 N. J. Law, 270; Hadley v. Bernero, 97 Mo. App. 314, 71 S. W. 451. The phrase may also mean a covenant which is per sonal • to the covenantor, that is, one which he must perform in person, and cannot procure another person to perform for him. Transitive or intransitive; the former be ing those personal covenants the duty of per forming which passes over to the representa tives of the covenantor; while the latter are those the duty of performing which is limited to the covenantee himself, and does not pass over to his representative. Bac, Abr. Cov. Disjunctive covenants. Those which are for the performance of one or more of several things at the election of the covenantor or covenantee, as the case may be. Piatt, Cov. 21. Absolute or conditional. An absolute covenant is one which is not qualified or limited by any condition. The following compound and descriptive terms may also be noted: Continuing covenant. One which indi cates or necessarily implies the doing of stipu lated acts successively or as often as the oc casion may require; as, a covenant to pay rent by installments, to keep the premises in repair or insured, to cultivate land, etc. Mc Glynn v. Moore, 25 Cal. 395. Full covenants. As this term is used in American law, it includes the following: The covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, sometimes for further assurance, and almost always of warranty, this last often taking the place of the

covenant for quiet enjoyment, and indeed in many states being the onlv covenant in practical use. Rawle, Cov. for Title, § 21. Mutual covenants. A mutual covenant is one where either party may recover damages from the other for the injury he may have re ceived from a breach of the covenants in his favor. Bailey v. White, 3 Ala. 330. Separate covenant. A several covenant; one which binds the several covenantors each for himself, but not jointly. Usual covenants. An agreement on the part of a seller of real property to give the usual covenants binds him to insert in the grant covenants of "seisin," "quiet enjoyment," "fur ther assurance," "general warranty," and "against incumbrances." CHv. Code Cal. J 1733. See Wilson v. Wood, 17 N. J. Eq. 216, 88 Am. Dec. 231; Drake v. Barton, 18 Minn. 467 (Gil. 414). The result of the authorities appears to be that in a case where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease containing "usual covenants," or, which is the same thing, in an open agreement without any reference to the covenants, and there are no special circumstances justifying the introduc tion of other covenants, the following are the only ones which either party can insist upon, namely: Covenants by the lessee (1) to pay rent; (2) to pay taxes, except such as are expressly payable by the landlord; (3) to keep and de liver up the premises in repair; and (4) to al low the lessor to enter and view the state of repair; and the usual qualified covenant by the lessor for quiet enjoyment by the lessee. 7 Ch. Div. 561. Specific covenants.—Covenant against incumbrances. A covenant that there are no incumbrances on the land conveyed; a stipula tion against all rights to or interests in the land which may subsist in third persons to the diminution of the value of the estate granted Bank v. Parisette, 68 Ohio St. 450, 67 N. E. 896; Shearer v. Ranger, 22 Pick. (Mass.) 447; Sanford.v. Wheelan, 12 Or. 301, 7 Pac. 324. —Covenant for further assurance. An undertaking, in the form of a covenant, on the part of the vendor of real estate to do such further acts for the purpose of perfecting the purchaser's title as the latter may reasonably require. This covenant is deemed of great im portance, since it relates both to the title of the vendor and to the instrument of conveyance to the vendee, and operates as well to secure the performance of all acts necessary for supplying any defect in the former as to remove all ob jections to the sufficiency and security of the latter. Piatt, Cov.; Rawle, Cor. §§ 98, 99. See Sugd. Vend. 500; Armstrong v. Darby, 26 Mo. 520.— Covenant for quiet enjoyment. An assurance against the consequences of a de fective title, and of any disturbances thereupon. Piatt, Cov. 312; Rawle, Cov. 125. A covenant that the tenant or grantee of an estate shall enjoy the possession of the premises in peace and without disturbance by hostile claimants. Poposkey v. Munkwitz, 68 Wis. 322, 32 N. W. 35, 60 Am. Rep. 858; Stewart v. Drake, 9 N. J. Law, 141; Kane v. Mink, 64 Iowa, 84, 19 N. W. 852; Chestnut v. Tyson, 105 Ala. 149, 16 South. 723, 53 Am. St. Rep. 101; Christy v. Bedell, 10 Kan. App. 435, 61 Pac. 1095. —Covenants for title. Covenants usually inserted in a conveyance of land, on the part of the grantor, and binding him for the complete ness, security, and continuance of the title trans ferred to the grantee. They comprise "cove nants for seisin, for right to convey, against incumbrances, or quiet enjoyment, sometimes for further assurance, and almost always of war ranty." Rawle, Cov. § 21.— Covenants in gross. Such as do not run with the land.— Covenant not to sue. A covenant by one who had a right of action at the time of mak-